US Senate Introduces More Legislation To Address Protection For Intellectual Property Rights Holders, Exert Influence Over Internet

This past week saw two new bills focusing on IP issues introduced by the United States Senate on the same day. While each deals with a different issue, they are both aimed at the same fundamental goal – to strengthen US law enforcement ability to deal with intellectual property infringement. This time, trademark and copyright protection take center stage, and they follow other attempts in 2011 to legislate on issues involving intellectual property.

The first of these, introduced as S. 968, is known as the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” – or the “Protect IP Act” in short form. The legislation is a revision of an earlier attempt to limit the illegal sale of counterfeit goods by cracking down on websites around the world.

The revised legislation, like the original one, confers significant powers to combat the online sale of counterfeit goods. Most of the original provisions remain, but notable among the additions is a limited private right of action that allows copyright holders to pursue injunctions against payment processors and ad networks to eliminate financial viability of a rogue website. The Protect IP Act also appears to respond to previous concerns by critics worried about an overreach of US authority by introducing a narrower definition of what a rogue website site is, and requiring those bringing an action —whether it’s the US Attorney General or a copyright owner —to first proceed against the owner or registrant of a domain name used before bringing an action against the domain name itself.

Nonetheless, Internet censorship worries remain. The revised legislation, as with the original, provides US authorities with the ability to institute an action against “nondomestic domain names,” meaning that law enforcement capability extends to websites not based in the United States – renewing concerns of too much US control over policing the Internet.  These concerns have recently drawn increased attention in the wake of the disclosure of sensitive diplomatic cables by Wikileaks and the vigorous efforts to choke off its ability to get information out to the global community.

The issue centers on the Internet Corporation for Assigned Names and Numbers (ICANN), its relationship with the United States, and its role in managing the global system of Internet protocol addresses and top-level domains. ICANN was originally created to oversee a number of Internet-related tasks previously performed directly on behalf of the US government. Several countries, in conjunction with the United Nations, have recently called for an international body representing the global community that would keep the web access open, free, and with sufficient privacy.

The second piece of legislation, introduced as S. 978, seeks to amend existing criminal penalties for criminal copyright infringement. Current US law makes unauthorized uploads and downloads of copyrighted content a felony. The new legislation specifically targets the illegal streaming of copyrighted content, extending felony status to such conduct. While it does not bring with it the same controversial issues as S. 968, these provisions do represent an attempt to address the constantly-changing nature of technology, such as the emergence of “cloud” computing, and its utility in assisting infringement of copyrights.

Attempts to legislate in the arena of intellectual property are therefore significantly increasing as 2011 progresses. Both bills come on the heels of at least two other major attempts to introduce legislation centered around intellectual property issues – one a controversial attempt to exert further control over the Internet, known as Cybersecurity and Internet Freedom Act, and a renewed attempt to reform US patent law. With the addition of S. 968 and S. 978, there is no doubt that intellectual property issues are firmly in focus for the US legislature.